In R (on the application of Richards) v Chief Constable of Cleveland Police (UKSC 2017/0090) the Supreme Court has refused permission to appeal against the imposition of a tagging requirement in a Sexual Offences Prevention Order (“SOPO”).  The undisturbed judgment of the Court of Appeal in R (on the application of Richards) v Teesside Magistrates' Court [2015] EWCA Civ 7; [2015] 1 WLR 1695 endorses (and perhaps extends) the purpose and effect of imposing qualified restrictions on sex offenders. 

By his own admission the appellant posed a "real danger" to women.  He had a long history of violent and sexual offences and was made subject to a SOPO under s.104(5) Sexual Offences Act (“SOA”) 2003.  A Magistrates’ Court granted the Chief Constable’s application to vary the SOPO by adding a requirement that the appellant wear an electronic tag whenever he left his registered address or anywhere he was staying overnight.  

The appellant sought judicial review of the variation on the grounds that (i) there was no express provision in the SOA 2003 authorising electronic tagging; (ii) the requirement was a positive obligation and so fell foul of s. 107(1) SOA, which permitted only negative requirements; and (iii) it breached his rights to a private and family life under Article 8 ECHR. 

The Court of Appeal concluded that the requirement was lawful:

1. It had been imposed pursuant to a specific power (s.104(5) SOA) and the principle that fundamental rights could only be overridden by express statutory language or necessary implication was therefore not engaged;

2. The requirement to wear a tag was prohibitory in nature, not mandatory;

3. The interference with the appellant’s rights under Article 8(1) ECHR was in accordance with the law for the purposes of Article 8(2).

As Beatson LJ observed at [29], "Many standard features of SOPOs may affect the fundamental rights of the persons subject to them." 

This particular SOPO also prohibited the appellant from having any friendship, sexual or physical relationship with a woman without first notifying the police. Had the appellant’s challenge succeeded, this provision would also have been unlawful, being not expressly authorised in the SOA 2003 and apparently mandatory in nature (requiring him to notify the police).

The Court of Appeal at [35] endorsed McCombe LJ’s conclusion in the Divisional Court at [32] that the relevant provisions of the SOPO amounted, in broad terms, to a "restriction on the manner in which the [appellant] must conduct himself when away from his residence." Thus, apparently mandatory requirements such as tagging or notification can fall within the SOA 2003 where they qualify or "relax" a more general prohibition.  

SOPOs have been replaced in England & Wales by Sexual Harm Prevention Orders and Sexual Risk Orders.  The provisions for these new orders still only allow any requirements to be negative or prohibitory in nature (ss. 103C(1) and 122A(7) SOA replicate s.107(1) SOA).

Respondents to applications for preventative orders often resist the imposition of positive or mandatory requirements on the basis that they are excessively onerous and contrary to the SOA 2003. Richards suggests that courts should consider the underlying purpose and effect of the order on the respondent’s activities when deciding whether a requirement can properly be described as being "prohibitory" in nature.

Still, there remains a niggling question on how far this goes. The Court of Appeal did not state to what extent a mandatory requirement will be lawful. It held, at paragraph [25], that one must look at the substance of a restriction in order to recognise whether a provision which appears mandatory is in substance prohibitory if (like the requirement to permit access to a computer) it is an exception to a prohibition. Any good lawyer should be able to settle requirements as chiefly negative prohibitions with relaxing positive obligations. As to whether that was what Parliament intended, given the enactment's requirement for negative prohibitions rather than positive obligations, is something that the Supreme Court has declined to consider.